People v. Washington , 461 Mich. 294 ( 1999 )

602 N.W.2d 824 (1999) 461 Mich. 294

PEOPLE of the State of Michigan, Plaintiff-Appellant,
v.
Tyree WASHINGTON, Defendant-Appellee.

Docket No. 111895.

Supreme Court of Michigan.

November 30, 1999.

Jennifer M. Granholm, Attorney General, Arthur A. Busch, Prosecuting Attorney, and Donald A. Kuebler, Chief, Research, Training and Appeals Flint, MI, for the people.

Martin J. Beres, St. Clair Shores, MI, for the defendant.

Opinion

PER CURIAM.

The Court of Appeals has vacated the defendant's drug conviction and sentence on the basis of a violation of the Double Jeopardy Clause of the Michigan Constitution, Const. 1963, art. 1, § 15 and M.C.L. § 333.7409; MSA 14.15(7409). We reverse the judgment of the Court of Appeals. The defendant relinquished his right to assert this claim when he failed to appear for sentencing after pleading guilty. The matter is remanded to the Court of Appeals for consideration of the other issue raised by the defendant but not addressed.

I

The defendant was arrested in December 1989 in connection with an undercover drug investigation in Genesee County. In August 1990, he pleaded guilty in Genesee Circuit Court of possession with intent to deliver less than fifty grams of cocaine. MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv).

Although the defendant was scheduled to be sentenced a short time later, he failed to appear and a bench warrant was issued. In February 1992, he was arrested in Macomb County on an unrelated narcotics offense, and housed at the Macomb County jail.

In July 1993, the Genesee Circuit Court issued a writ of habeas corpus that directed the Macomb County Sheriff to produce the defendant for the purpose of sentencing him. The writ was not executed, however.

After his arrest in Macomb County, the defendant was charged in federal court with a separate drug offense that arose out of the December 1989 incident.^[1] He was found guilty of the federal charge in May 1994 and sentenced five months later to 235 months in prison, to be followed by five years of supervised probation. In February 1996, the defendant's federal sentence was reduced to 120 months.^[2]

The defendant finally was sentenced on the Genesee County charge in November 1996.^[3] The circuit court imposed a prison term of 41 to 240 months, concurrent with the defendant's federal sentence.

The Court of Appeals vacated the defendant's conviction and sentence,^[4] finding violations of the Double Jeopardy Clause of the Michigan Constitution, Const. 1963, art. 1, § 15,^[5] and M.C.L. § 333.7409; MSA 14.15(7409).^[6] The prosecutor seeks leave to appeal.^[7]

II

This is an unusual case. After pleading guilty, the defendant derailed the orderly process of justice by failing to appear for sentencing. Thus, defendant's own misconduct provided the occasion for the alleged error that he now argues is grounds for reversing his conviction in Genesee County. In other words, the potential for a violation under Const. 1963, art. 1, § 15 and M.C.L. § 333.7409; MSA 14.15(7409) would not have arisen had the defendant appeared for imposition of sentence, as directed. By violating the trial court's order and the trust implicit in allowing him to remain free on bond pending sentencing, the defendant gave up the right to later challenge his conviction on this basis.^[8]

Indeed, one has only to consider the particulars of what occurred in this case to conclude that the defendant's protest defies common sense. The defendant did not object to any aspect of the plea proceeding held in August 1990, and does not now claim that it was defective in any way. The trial court determined that the plea was voluntarily, knowingly, and understanding made, and that the defendant had provided a sufficient factual basis. At that point, the prosecution of the crime was complete, and all that remained was for the trial court to decide upon appropriate punishment.

The defendant does not contend that anyone but he was responsible for his failure to appear for sentencing a short time later. Rather, he protests the consequence, i.e., the relinquishment of his state double jeopardy challenge. The defendant misapprehends what has occurred, however. If he had not breached his agreement to return to court for sentencing, there would have been no possibility of a violation under Const. 1963, art. 1, § 15, and M.C.L. § 333.7409; MSA 14.15(7409), with respect to his Genesee County conviction. The potential arose long after his misconduct, and he will thus not now be heard to complain about a series of events that he set in motion.

"Neither in criminal nor in civil cases will the law allow a person to take advantage of his own wrong. And yet this would be precisely what it would do if it permitted an escape from prison, or an absconding from the jurisdiction while at large on bail ... to operate as a shield." [Diaz v. United States, 223 U.S. 442, 458, 32 S.Ct. 250, 56 L Ed 500 (1912), quoting Falk v. United States, 15 App. D.C. 446, 460 (1899), error dismissed 180 U.S. 636, 21 S.Ct. 922, 45 L.Ed. 709 (1901).]

III

For the reasons given, we reverse the judgment of the Court of Appeals and remand this matter to that Court for consideration of the other issue raised by the defendant but not addressed. MCR 7.302(F)(1).

Contrary to the suggestion of the dissenting justice, we do not conclude that "defendant gave up his double jeopardy protections because of his own misconduct." Op. at 827 (emphasis added). Such a conclusion would imply that, in the absence of his misconduct, defendant had "double jeopardy" rights to assert in the first place. That is not so here. It would be more accurate to say that defendant, by his own misconduct, created the opportunity to assert rights under M.C.L. § 333.7409; MSA 14.15(7409) and People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976). By holding that defendant may not assert "rights" that came into existence because of his own misconduct, we have not created a new exception to M.C.L. § 333.7409; MSA 14.15(7409) or Cooper, supra, as our dissenting colleague contends. Instead, we have merely restated the common-sense principle that a criminal defendant may not take advantage of his own wrong.

WEAVER, C.J., and TAYLOR, CORRIGAN, YOUNG, and MARKMAN, JJ., concurred.

MICHAEL F. CAVANAGH, J. (dissenting).

Because I would deny leave or would affirm the decision of the Court of Appeals, I dissent. This case springs from the relationship between state and federal law. The Court of Appeals correctly vacated the defendant's state court sentence pursuant to Michigan's Double Jeopardy Clause,^[1] M.C.L. § 333.7409; MSA 14.15(7409),^[2] and People v. Cooper, 398 Mich. 450, 247 N.W.2d 866 (1976). In Cooper, this Court rejected the dual sovereignty doctrine. Instead, Cooper held that state prosecution is impermissible after federal prosecution if the state and federal statutes at issue are substantially similar. Cooper and M.C.L. § 333.7409; MSA 14.15(7409) teach that federal prosecution will satisfy the state's need for prosecution when state and federal interests coincide.

Although today's opinion per curiam does not expressly overrule Cooper, the Court indirectly assaults Cooper for the third time in as many years. The first attack occurred in People v. Mezy, 453 Mich. 269, 551 N.W.2d 389 (1996). The Mezy lead opinion attempted to undermine the validity of Cooper, but four justices refused to attack the Cooper doctrine. Then, in People v. Childers, 459 Mich. 216, 587 N.W.2d 17 (1998), the Court upheld the dual prosecution of a sex offender, stating that the social interests of Michigan would be ignored if state prosecution were prohibited. The Childers majority erroneously opined that prosecution was permissible under Cooper because the state and federal statutes at issue were not substantially similar. I dissented, expressing my fear that Cooper would soon become a hollow shell. It is clear that today's decision again chips away at Cooper.

By concluding that the defendant gave up his double jeopardy protections because of his own misconduct, the Court takes another step toward the adoption of dual sovereignty. The opinion makes this stride without citing any supporting legal authority. Nor does the Court account for contrary authority; the opinion completely fails to mention Cooper. Further, the plain language of M.C.L. § 333.7409; MSA 14.15(7409) is ignored. Instead, the opinion loosely mentions the statute in conjunction with references to the Double Jeopardy Clause. If the Court intends to dispose of Cooper, it should do so forthrightly, rather than by subtly peppering exceptions throughout Michigan's case law. This is especially true where the exceptions are not supportable. In my view, both Cooper and the Michigan Constitution support the decision of the Court of Appeals.

MARILYN J. KELLY, J., concurred with MICHAEL F. CAVANAGH, J.

NOTES

[1] The charge was possession with intent to distribute more than five grams of cocaine, contrary to 21 USC 841(a)(1). The defendant also was charged with another offense that was not related to the December 1989 incident, i.e., conspiracy with intent to distribute cocaine and cocaine base, contrary to 21 USC 846.

[2] The federal sentences were the same with regard to each count described in footnote 1.

[3] He first was arraigned on a bench warrant that cited him for contempt for failing to appear for sentencing in 1990, but the warrant was dismissed.

[4] Unpublished opinion per curiam of the Court of Appeals, issued March 20, 1998 (Docket No. 201057).

[5] "No person shall be subject for the same offense to be twice put in jeopardy."

[6] "If a violation of this article [which applies to controlled substance offenses] is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state."

[7] We initially held the application for leave to appeal in abeyance for People v. Childers, 459 Mich. 216, 587 N.W.2d 17 (1998). After Childers was decided, we asked the parties for supplemental briefing regarding three issues: (1) the effect of the defendant's guilty plea on his double jeopardy claim, (2) whether the conviction in Genesee County followed or preceded the federal conviction for purposes of double jeopardy analysis, and (3) whether M.C.L. § 333.7409; MSA 14.15(7409) is inapplicable because the defendant had been prosecuted in Genesee County before he was convicted in federal court. Our disposition of this appeal makes it unnecessary for us to resolve these issues in this case.

[8] The situation is similar to what occurs when a defendant, through repeated disruptive behavior, is removed from the courtroom during trial or voluntarily fails to appear. Although a defendant has a constitutional right to be present for such critical proceedings in the usual circumstance, his later challenge usually will not be heard on this basis because he has created the error that he seeks to protest. Illinois v. Allen, 397 U.S. 337, 342-343, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), Taylor v. United States, 414 U.S. 17, 19-20, 94 S.Ct. 194, 38 L.Ed.2d 174 (1973), and People v. Swan, 394 Mich. 451, 452, 231 N.W.2d 651 (1975), cert. den 423 U.S. 990, 96 S.Ct. 402, 46 L.Ed.2d 308 (1975). See also People v. Garvin, 159 Mich.App. 38, 43-44, 406 N.W.2d 469 (1987), lv. den 591 N.W.2d 38, 428 Mich. 909 (1987), in which the defendant lost the right to withdraw his guilty plea by escaping from custody before sentencing, even though the trial court rejected the proffered sentence bargain.

[1] Const. 1963, art. 1, § 15.

[2] If a violation of this article is a violation of a federal law or the law of another state, a conviction or acquittal under federal law or the law of another state for the same act is a bar to prosecution in this state.